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01/25/2017

Judge Gorsuch on the Role of Courts
Michael Ramsey

Multiple sites are reporting that Judge Neil Gorsuch is the (new) frontrunner for the Supreme Court nomination.  At Above the Law, David Lat handicaps what he hears are the (new) top four: Judges Gorsuch, Pryor, Hardiman and Kethledge (he leans to Gorsuch or Hardiman).

At NRO, Ed Whelan points to this 2005 NRO article by then-attorney Gorsuch: Liberals’N’Lawsuits.  Key paragraphs:

There’s no doubt that constitutional lawsuits have secured critical civil-right victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, ... American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.

This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs–real-world laboratories in which ideas can be assessed on the results they produce–are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

At the same time, the politicization of the judiciary undermines the only real asset it has–its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes. The judiciary’s diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate’s confirmation process. Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks. It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.

I sort of agree and sort of don't.  Like many calls for judicial restraint, this one takes the form of: the judiciary should not intervene in the political process, except when it should.  (For a book -length version of one, see here).  Of course, it's not just liberals that want judicial intervention (e.g., affirmative action, second amendment, regulatory takings, federalism).  The key question is, when is intervention appropriate.  It is not enough to say it should be "extraordinary," because one can call whatever intervention one favors "extraordinary."  And that may end up happening fairly often (after all, the Supreme Court gets lots of extraordinary cases).  The answer I think Judge Gorsuch would now give is that judicial intervention is appropriate when the original meaning of the Constitution's text directs it.  At least, I hope so.